Mills v. Bell Mobility Inc.

Mills v. Bell Mobility Inc.
Collection
Canadian Human Rights Tribunal
Date
2017-01-24
Neutral citation
2017 CHRT 1
File number(s)
T2132/0616
Decision-maker(s)
Lustig, Edward P.
Decision type
Decision
Decision status
Final
Grounds
Disability
Decision Content
Canadian Human Rights Tribunal
Tribunal canadien des droits de la personne
Citation: 2017 CHRT
1
Date:
January 24, 2017
File No.:
T2132/0616
Between:
Linda Mills
Complainant
- and -
Canadian Human Rights Commission
Commission
- and -
Bell Mobility Inc.
Respondent
Decision
Member:
Edward P. Lustig
I. Background 1
II. Applicable provisions of the Act 2
III. Facts 4
A. Ms. Mills’ health and disability 4
B. The events of July 11, 2014 5
C. Bell Mobility and its Retail Activation Standards 8
IV. Analysis 13
A. Legal Framework 13
B. Issues 15
C. Positions of the parties 16
(i) Ms. Mills and the Commission’s position 16
(ii) Bell’s position 18
D. Prima facie case established 20
E. Bona fide justification not established 22
V. Complaint substantiated 25
VI. Order 26
A. Positions of the parties 26
(i) Ms. Mills and the Commission’s position 26
(ii) Bell’s position 28
B. Measures to redress and prevent the discriminatory practice 28
C. Compensation for pain and suffering 30
D. Special compensation for wilful or reckless discrimination 30
E. Interest 31
I. Background
[1] Ms. Linda Mills filed a complaint with the Commission dated March 16, 2015. She alleges Bell Mobility Inc. (“Bell”) discriminated against her on the grounds of her physical and cognitive disabilities, pursuant to section 5 of the Canadian Human Rights Act (the “Act”). She claims Bell refused to provide her with same-day activation service for a new cellular phone she needed on July 11, 2014, unless she appeared in person to be visually identified at one of Bell’s retail stores to purchase the phone. At that time, Ms. Mills was primarily bedridden due to ongoing chemotherapy and was not to go out except in emergencies as her immune system was at risk.
[2] The Canadian Human Rights Tribunal (the “Tribunal”) was requested by the Commission to initiate an inquiry into the complaint on January 14, 2016, pursuant to section 44(3)(a) of the Act.
[3] A hearing was held in London, Ontario from the 12th to the 18th of October, 2016. At the hearing, Ms. Mills attended and testified as a witness on her own behalf and her son, Mr. Ian Philp, also testified as a witness for her. Mr. Philp is a lawyer who works in New York from where he testified by Skype. Ms. Ikram Warsame, counsel for the Commission, also attended the hearing to represent the public interest. While Ms. Mills put several questions to the witnesses and made closing submissions, it was Ms. Warsame who examined Ms. Mills and her son, cross-examined Bell’s witnesses and made opening and closing submissions for the Commission. Three employees testified on behalf Bell: Mr. Serdar Yavuz, Senior Manager, Credit and Collections; Ms. Rosanna Caporuscio, Senior Manager, Customer Care; and, Mr. Lawrence Lau, Director, Business Process.
[4] I found all of the witnesses who testified in this case to be forthright, and credible. Additionally, I found Ms. Mills to be both courageous and inspirational. Finally, I am grateful for the cooperation and excellent work in this case by Ms. Warsame and Bell’s counsel, Mr. VanDyk.
[5] For the reasons that follow, I find Ms. Mills’ complaint is substantiated.
II. Applicable provisions of the Act
[6] Sections 2, 3(1), 5, 15(1)(g), 15(2), 53(2)(a) and (e), 53(3) and 53(4) of the Act are applicable in this case and provide as follows:
2 The purpose of this Act is to extend the laws in Canada to give effect, within the purview of matters coming within the legislative authority of Parliament, to the principle that all individuals should have an opportunity equal with other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices based on race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability or conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
3 (1) For all purposes of this Act, the prohibited grounds of discrimination are race, national or ethnic origin, colour, religion, age, sex, sexual orientation, marital status, family status, disability and conviction for an offence for which a pardon has been granted or in respect of which a record suspension has been ordered.
…
5 It is a discriminatory practice in the provision of goods, services, facilities or accommodation customarily available to the general public
(a) to deny, or to deny access to, any such good, service, facility or accommodation to any individual, or
(b) to differentiate adversely in relation to any individual,
on a prohibited ground of discrimination.
…
15 (1) It is not a discriminatory practice if…
(g) in the circumstances described in section 5 or 6, an individual is denied any goods, services, facilities or accommodation or access thereto or occupancy of any commercial premises or residential accommodation or is a victim of any adverse differentiation and there is bona fide justification for that denial or differentiation.
(2) For any practice mentioned in paragraph (1)(a) to be considered to be based on a bona fide occupational requirement and for any practice mentioned in paragraph (1)(g) to be considered to have a bona fide justification, it must be established that accommodation of the needs of an individual or a class of individuals affected would impose undue hardship on the person who would have to accommodate those needs, considering health, safety and cost.
…
53 (2) If at the conclusion of the inquiry the member or panel finds that the complaint is substantiated, the member or panel may, subject to section 54, make an order against the person found to be engaging or to have engaged in the discriminatory practice and include in the order any of the following terms that the member or panel considers appropriate:
(a) that the person cease the discriminatory practice and take measures, in consultation with the Commission on the general purposes of the measures, to redress the practice or to prevent the same or a similar practice from occurring in future, including
(i) the adoption of a special program, plan or arrangement referred to in subsection 16(1), or
(ii) making an application for approval and implementing a plan under section 17;
…
(e) that the person compensate the victim, by an amount not exceeding twenty thousand dollars, for any pain and suffering that the victim experienced as a result of the discriminatory practice.
(3) In addition to any order under subsection (2), the member or panel may order the person to pay such compensation not exceeding twenty thousand dollars to the victim as the member or panel may determine if the member or panel finds that the person is engaging or has engaged in the discriminatory practice wilfully or recklessly.
(4) Subject to the rules made under section 48.9, an order to pay compensation under this section may include an award of interest at a rate and for a period that the member or panel considers appropriate.
III. Facts
A. Ms. Mills’ health and disability
[7] The parties either agreed with or did not contest the facts concerning Ms. Mills’ health and disability and the events that took place on July 11, 2014.
[8] Ms. Mills became ill and was diagnosed with pancreatic cancer in December of 2013. At the time, she was working as a school Principal. She underwent unsuccessful abdominal surgery to remove the cancer in January 2014. As a result of a biopsy of the tumor, it was determined that she had acute lymphoblastic leukemia rather than pancreatic cancer. After a two week period of recovery from the surgery, she commenced an inpatient phased chemotherapy program for the leukemia in February of 2014. However, the effects of the strong dosages of this therapy caused her to have a stroke, followed by seizures between March 12th and 14th that almost caused her death. Following the seizures, she needed assistance to breathe and was placed in intensive care. She has no recollection for about 10 days of that dark period of her life. Fortunately, she survived and was then sent for rehabilitation from the stroke and seizures. She also resumed her chemotherapy at 50 per cent of the dosage she had previously received.
[9] As a result of the stroke and seizures, Ms. Mills was initially paralyzed on her whole right side and could not speak. After seven weeks of rehabilitation in Toronto, she was cleared to go back home to London for further recovery, physiotherapy and chemotherapy in May of 2014. After she returned home to London, she was still in a severely weakened state both physically and mentally. As a result of the chemotherapy and her illnesses, her weight decreased from her pre-surgery weight of 150 pounds to just over 100 pounds in July and 97 pounds in November of 2014. She was medically certified as disabled with a negative prognosis, including a proposed 3 year chemotherapy treatment plan. She was approved for permanent long term disability benefits and did not return to work when the next school year started in September of 2014. In November of 2014 she was hospitalized again for 3 weeks as a result of her deteriorated health condition and lack of protein caused by the chemotherapy.
B. The events of July 11, 2014
[10] The events giving rise to this case occurred on July 11, 2014. At that time, Ms. Mills was completely bed ridden at home in a very weak condition both physically and mentally. She could not walk on her own and had significant cognitive and immune system deficiencies as a result of her stroke, seizures, leukemia and the chemotherapy. She was then still partially paralyzed and could not speak properly or go to the bathroom by herself. She was unable to focus or concentrate properly as a result of the stroke and seizures and suffered from aphasia and apraxia. She had orders from her doctor not to go out except in emergencies as she was too weak and her immune system was at risk. Physiotherapy was given to her at home and she only left home for chemotherapy and then only with a wheelchair and with the help of others.
[11] She needed a new cellular phone as the phone she had from her employer needed to be returned as she was not going back to work. She wanted to be able to have the new cellular phone available in case she needed to contact her family or medical help when she was alone. As such, she made arrangements with her son, Mr. Philp, on a planned visit from him on July 11, 2014, to have him go to a store for her and pick up a new cellular phone and set up the phone so she could use it on the same-day.
[12] Mr. Philp was her “go to” person for technical matters, like setting up a cell phone, especially given her state of health as it existed on July 11, 2014. According to Ms. Mills, she could not possibly have programmed a cellular phone herself given her cognitive deficiencies as they existed at that time and she could not have safely gone to a store to pick up the phone given her physical and health restrictions.
[13] Ms. Mills has been a loyal customer of Bell Canada for over 42 years for various residential services including internet, fax, television and land line phone service that she was satisfied with and always paid for in full and on time. Bell Canada had her address, phone number and credit history as a result of her being a long-time customer. On July 11, 2014, Mr. Philp contacted Bell by phone from his mother’s residence on three occasions to try to make arrangements to buy and pick up a new cell phone for her by bringing all her required identification to a retail store and have the phone activated that day so that he could bring it back to her and set it up for use while he was visiting her. He was not able to make those arrangements as he was told by Bell representatives who he spoke with that, despite her disabilities, if his mother wanted to purchase, obtain and activate a new cell phone that day, she would have to appear in-person at a retail store as Bell had a policy requiring in-person attendance at the store for same-day activation by the person buying the phone.
[14] Mr. Philp fully advised the Bell representatives that he spoke with on that day about his mother’s physical and mental condition, and inability to attend in-person due to her health and disabilities. He explained that it was not that she was unwilling to attend in person, rather that she was unable through no fault or choice of her own to attend in person at a store. He also explained that she could not program the phone herself without him and that he was visiting only that day. He told the Bell representatives that attending in-person at a store was contrary to his mother’s doctor’s orders and prejudicial to her health.
[15] He also told the Bell representatives that he was willing to bring in all of the identification required, including a government approved photo of her, such as a passport, and a credit card. She did not have a driver’s licence then as it had been revoked as a result of her disability and medical condition. He further suggested to the Bell representatives that they access her long and excellent credit history with Bell Canada to confirm her identity and capacity to pay. He also offered to put her on the telephone to verify that she was there and willing to have him act for her. He also offered to bring in a Power of Attorney that she had signed in his favour several years earlier, and that was still valid, authorizing him to act for her. He also offered to take the contract for the purchase of the phone back to her at her residence to be signed by her and bring it back to the store after which they could call her at her home phone and speak to her to verify her identity. None of these offers by Mr. Philp were acceptable to the Bell representatives he spoke with that day.
[16] In the end, the Bell representatives advised Mr. Philp that there was no room for discretion or accommodation in Bell’s rule that, if his mother wanted to buy a new cell phone and have it activated for herself on the same day, she had to attend in person at a retail store--even in her disabled condition. They did suggest that she could go online or phone a toll free number from home and order a phone with a credit card showing her residential address; and, the phone would be delivered by courier within a few days at the residential address given. While other in-store options were available, the Bell representatives did not advise Mr. Philp of these options. Those additional options are discussed below at paragraphs 33 and 34.
[17] Finally, as Ms. Mills felt that she needed a new cellular phone that day, and was frankly angered, she decided to get out of bed and get dressed with the help of her son and go to a Bell store in a shopping mall in London. She bought the new cellular phone on a postpaid basis and had it activated that day after being identified with picture ID and a credit card in the store and signing a contract. It was an arduous and dangerous thing for her to do in her condition, but she felt she had no choice given she wanted it activated that day so her son could help her start using it while he was visiting her. It took her over an hour to get ready and be driven to the mall and moved by wheelchair into the store in order to get the phone and be visually identified in the store. Once in the store, the process took no more than 5 minutes. She testified that the store employees were kind to her when she was there and she felt that they were embarrassed to see her there then, bald from chemotherapy, in a wheelchair, weighing around 100 pounds and having to identify herself in-person in that condition, despite her and her son’s unsuccessful efforts to try to avoid such a scene.
[18] Later that day, with her son’s help, Ms. Mills emailed a letter of complaint to Bell Canada Customer Service explaining what had occurred. She asked Bell to change its policy to allow disabled people, who cannot attend in-person at a store and need same-day cellular phone activation, to be able to obtain that service like other able bodied Canadians. She testified that she sent the email that day, but never received a response from Bell.
[19] Once she felt better in March of 2015, Ms. Mills filed the complaint in this matter. According to Ms. Mills, she did not file the complaint for herself, as she had already obtained the new cellular phone she needed on July 11, 2014. Rather, she sent the email and filed the complaint for other people who were disabled, ill and alone and not able to move around their residence, or get to a store themselves; and, need a cellular phone handy to keep them in touch with family and medical help without waiting for a phone to be delivered several days later. In Ms. Mills’ opinion, she was more fortunate than many disabled Canadians as she had the resources and the help of family to be able to get the new cellular phone she needed on July 11, 2014. In her view, a cell phone is a “life line” for her and many disabled people, particularly in emergencies when they are bed ridden and without someone to care for them.
C. Bell Mobility and its Retail Activation Standards
[20] BCE Inc. is a publicly traded holding company that is Canada’s largest communications company and one of the largest companies in Canada by market capitalization, revenues and net income, all of which is in the billions of dollars annually. One of its main assets is Bell Canada which is Canada’s largest telecommunications company. Bell Mobility is a subsidiary of Bell Canada and sells mobile communication devices such as cellular phones and cellular voice and data usage plans to consumers and businesses across Canada.
[21] Bell has several hundred corporate-owned retail stores across Canada. The stores employ 350 managers and 2,200 front-line, non-management employees (commonly referred to as “Sales Representatives”). In the retail stores, Sales Representatives sell Bell’s services and products, including new cellular phones, to the public and assist with the activation of new accounts.
[22] Cellular phones can either be purchased in a retail store outright (prepaid) or subsidized by Bell over a two year contract (postpaid). They can also be purchased online or over the phone. The vast majority (99%) of Bell’s customers choose to attend at retail stores to buy, activate and receive their new cell phones the same day, rather than purchase online or over the phone.
[23] With a two year postpaid contract, the customer whose name is on the account pays the cost of the phone, as well as ongoing usage costs, over the two year term rather than prepaying all costs upfront. Currently, a cell phone may cost as much as $1400 for the latest and best model. A customer can buy up to 10 devices postpaid and when doing so, after signing the contract, will leave the store with the devices fully activated for use and a promise to pay over the term of the contract.
[24] Because of the nature of the mobile device market, where an individual can agree to pay for the devices on a subsidized basis and then walk out of the retail store with one or more activated devices, Bell is a target for fraud by individuals seeking to commit identity theft fraud and profit by activating mobile devices and plans in the name of other people. This occurs thousands of times each year, resulting in losses to Bell (and in some cases to fraud victims, and finance/insurance companies) of millions of dollars annually. The specific incidence and monetary statistics of fraud that were presented at the hearing are not included in this decision as agreed to, but they represent between 1 and 2 percent of activations and several millions of dollars lost annually. The statistics presented by Bell did not identify the losses that were directly attributable to identify theft fraud, as opposed to any other type of fraud.
[25] Identity fraud can occur in various ways, including stolen identification documents, forged identification documents (that today can be “doctored” in very sophisticated ways digitally and otherwise even with government ID), or paying customers for their identification documents with no intention of paying for the device or the services. In identity theft fraud, the fraudster is leaving the store with the activated device and, in addition to the subsidy on the device, the fraudster is likely using a stolen credit card to pay for any upfront cost of the device. The device can then be used by the fraudster or sold to someone else. Furthermore, the cellular phone has a SIM card inside that can be taken out and sold, and/or used by someone else, resulting in unauthorized data and long distance charges that can run to the tens of thousands of dollars before being detected and shut down.
[26] The victim of the fraud whose identification or identity has been stolen pays for the devices and services before the fraud is detected by Bell or reported. It can take up to 3 or 4 months before the situation is corrected. These victims are put in the difficult position of demonstrating to Bell that they were the victim of a crime and that they did not actually activate the device or services. Credit ratings can be impacted because of this. Credit card companies and insurers may also end up being on the hook for losses and, as mentioned above, Bell as well.
[27] In order to prevent this type of fraud and protect members of the public from identity theft fraud, Bell has put in place retail fraud policies which, it submits, are consistent with industry standards. These policies are found in its Retail Activation Standards and require that any person activating a new cellular phone, without exception, must appear in-person, show government photo identification and pass a credit check before they are permitted to enter into a postpaid contract, activate an account for the cellular phone and leave the store with the phone. Bell accepts a valid Driver’s License, Canadian passport, Canadian Citizenship Card, Indian Status Identity Card or an official Provincial Photo ID. These pieces of identification have various hallmarks of authenticity that make them difficult to forge: they can be read by ID scanners and they represent that, before issuing them, the government has taken appropriate steps to verify the identity of the person holding the ID. According to Bell, these same standards are applied similarly by all of its competitors in the market it operates in.
[28] Bell Sales Representatives are trained to follow, without any discretion or exception, the Retail Activation Standards and not deviate from them even in cases involving disabled people like Ms. Mills. This is because of the threat of fraud and the potential monetary losses from the fraud that may be incurred by Bell (and possibly the fraud victim, credit companies and insurance companies, as the case may be). Potential fraud is the sole reason for the standard requiring the person buying a new cellular phone on a postpaid basis to attend at a retail store in person to be visually identified by a sales representative.
[29] The Bell Sales Representatives are not trained for exceptions like the use of Powers of Attorney, which are handled offsite, over a number of days, by a small centralized group of highly trained and very experienced service agents. This is because Powers of Attorney have none of the hallmarks of authenticity that government issued identification has. Moreover, according to Bell, its sales workforce at its retail stores has a high turnover rate, resulting in heightened chance of errors being made if Sales Representatives have the opportunity to use discretion to make exceptions to rules.
[30] There was no evidence adduced by Bell as to how much it would cost to provide accommodation for disabled persons from its rule requiring in-person attendance at retail stores for visual inspection to purchase a new cellular phone on a postpaid basis in cases like Ms. Mills’; or, whether such accommodation would increase the incidence or cost of fraud. Nor was there any evidence given by Bell that it ever looked into the possibility of accommodation from its rule for Ms. Mills in this case; that it ever considered making any changes to its rule in this regard to accommodate disabled people; or, that it ever turned its mind to an assessment of the potential costs and implications of doing so in order to accommodate disabled people by relaxing or changing its rule for them. Also, the evidence was that Bell does not have policies for or provide training to its Sales Representatives in human rights or its obligations under the Act.
[31] It was suggested by Mr. Philp that the disabled group of people his mother was part of that needed to be accommodated would likely be very small and the costs likely very low, given the statistics provided by Bell about the annual numbers of activations and fraud costs. Mr. Philp testified that he felt that even if there was a chance of fraud, the costs would be extremely minimal in the big picture for Bell and would be akin to the costs of providing other types of accommodation for physically disabled people, such as access ramps that are seen to be an acceptable cost of doing business in Canada.
[32] According to Bell, if a customer wishes to purchase and activate a new postpaid cellular phone, but is unable or unwilling to visit a retail store in-person to be visually identified with proper identification, they may do so online or over the phone. Bell does not require visual identification for over the phone or online orders, because the phone will be shipped to the address on the credit card given. Bell is further protected from fraud in online and phone activations because it can track the transaction with other information made available to it, including telephone numbers and IP addresses.
[33] However, if the customer is purchasing the new cell phone either by phone or on line, the new cell phone will not be delivered until several days after it is ordered. As mentioned above, instead of waiting days for a new phone to be delivered after ordering it online or over the phone, 99% of Bell’s customers choose to buy their new cellular phones in retail stores where they can pick them up there, post pay, and have them activated on the same day after signing a contract. While the online and phone purchase ordering alternatives were offered by Bell as an option to Ms. Mills on July 11, 2014, she was not willing to do this because the phone would not have been delivered or activated that day that she needed it.
[34] As mentioned above, Bell also had two other options that were not presented to Ms. Mills on July 11, 2014 that allow a customer who is unable or unwilling to visit a retail store in person to be able to acquire and activate a new cell phone on the same day without attending at the store in-person to be visually identified. The first such option is for the customer to prepay the entire retail cost of the phone and also a certain amount of usage (data or calling minutes) in advance through another person who attends on their behalf at the store. However, Ms. Mills submits this option is only feasible if the customer has the means to cover the prepaid costs of the phone. That is, this option imposes a financial burden on customers who cannot attend in-store that is not imposed on other customers. Again, the vast majority of Bell’s customers, whether disabled or not, opt to purchase their cellular phone on a postpaid basis, with same-day activation.
[35] The second option is for another individual to attend at the retail store in person to purchase and activate the cell phone that day in their name but, thereafter, to transfer the account and device into the name of the customer who is unable or unwilling to attend at the store. However, again, the device must be prepaid in order to be able to transfer it. Under this option, Ms. Mills submits not only must the customer have the means to cover the prepaid costs of the phone, but it also assumes they can find someone who is willing and able to obtain the phone in their name and take on the payment responsibility pending the transfer process being completed.
[36] As previously stated, neither of these last two options were provided by Bell to Ms. Mills or her son on July 11, 2014. In fact, they were not presented to Ms. Mills until just before the start of the hearing and were only made into a Bell policy in August of 2016 after the hearing dates were set and not that long before the hearing commenced. In any event, as indicated above, Ms. Mills and her son both testified that these options do not address the issue of substantively equal treatment for disabled people who want to have same-day activation of new cell phone purchases, on a postpaid basis, without having to prepay the cost or find and rely on someone else who is willing and able to obtain the phone in their name and take on the payment responsibility pending the transfer of responsibility process being completed.
IV. Analysis
A. Legal Framework
[37] Disabled individuals should have an opportunity equal with all other individuals to make for themselves the lives that they are able and wish to have and to have their needs accommodated, consistent with their duties and obligations as members of society, without being hindered in or prevented from doing so by discriminatory practices (see s. 2 of the Act). A company that provides a service customarily available to the general public, cannot deny or deny access to the service, or differentiate adversely in relation to any individual, based on disability (see s. 5 of the Act).
[38] In the adjudication of human rights complaints before the Tribunal, a complainant has the burden of proof of establishing a prima facie case of discrimination. A prima facie case is “…one which covers the allegations made and which, if they are believed, is complete and sufficient to justify a verdict in the complainant’s favour in the absence of an answer from the respondent”. [1] In this case, under section 5 of the Act, Ms. Mills must establish that 1) she has or had a disability; 2) that she was denied a service or was adversely differentiated against in the provision of a service customarily made available by Bell to the general public; and, 3) that her disability was a factor, though not necessarily the sole or only factor, in that denial or adverse treatment. [2]
[39] A respondent may avoid an adverse finding by calling evidence to show its action is not discriminatory or by establishing a statutory defense that justifies the discrimination. In this case, Bell argues its Retail Activation Standards had no adverse impact on the complainant. Alternatively, it submits the application of its Retail Activation Standards are not discriminatory because reasonable alternative accommodations were available and removing the standards would constitute an undue hardship given the additional risk of fraud and identity theft to Bell and the public.
[40] With regard to Bell’s undue hardship argument, section 15(1)(g) of the Act provides that it is not a discriminatory practice if there is a bona fide justification for any denial or adverse differentiation in services. Section 15(2) of the Act further provides that, to be considered to have a bona fide justification, Bell must establish that accommodation of Ms. Mills’ needs would impose an undue hardship on it, considering health, safety and cost. To establish a bona fide justification and corresponding undue hardship, the parties agree that Bell must, on a balance of probabilities, prove that [3] :
it adopted the standard for a purpose or goal that is rationally connected to the function being performed;
it adopted the standard in good faith, in the belief that it is necessary for the fulfillment of the purpose or goal; and
the standard is reasonably necessary to accomplish its purpose or goal, in the sense that the defendant cannot accommodate persons with the characteristics of the claimant without incurring undue hardship.
[41] Establishing a bona fide justification for a prima facie violation of human rights legislation requires a respondent to show that it has made every possible accommodation short of undue hardship. [4] That is, “[i]f a reasonable alternative exists to burdening members of a group with a given rule, that rule will not be bona fide”. [5]
[42] Again, disability related needs attract accommodative protection for the disabled under the law. The concept of reasonable accommodation recognizes “the right of persons with disabilities to the same access as those without disabilities”. [6] That access is generally not achieved by simply providing alternatives or treating everyone the same. Substantive equality may require that positive steps be taken to ensure that disadvantaged groups benefit equally from services offered to the general public. [7] That is, “[u]ndue hardship implies that there may necessarily be some hardship in accommodating someone’s disability, but unless that hardship imposes an undue or unreasonable burden, it yields to the need to accommodate”. [8]
[43] Finally, if a complaint is substantiated, an order can be made against the person found to be engaging or to have engaged in the discriminatory practice. Otherwise, if the complaint is not substantiated, it is dismissed (see s. 53 of the Act).
B. Issues
[44] Based on the legal framework outlined above, the issues to be determined in this case are as follows:
Has Ms. Mills met her burden of proving a prima facie case of discrimination, on the basis of a disability, pursuant to section 5 of the Act?
If Ms. Mills has proven a prima facie case of discrimination, has Bell established a bona fide justification for its prima facie discriminatory practice, on the basis of sections 15(1)(g) and 15(2) of the Act?
If Bell cannot establish a bona fide justification, should an order be made against it?
C. Positions of the parties
(i) Ms. Mills and the Commission’s position
[45] According to Ms. Mills and the Commission, a prima facie case has been established on the evidence adduced. Bell subjected Ms. Mills to adverse or negative treatment in respect of a service customarily available to the public, namely same-day activation of a new cellular phone purchased on a subsidized postpaid basis. It did not accommodate her when it knew that she was prevented by her physical and cognitive disabilities from attending at a retail store to be visually inspected before obtaining the cellular phone.
[46] Same-day activation service in the purchase of a new subsidized cellular phone is the service customarily available to the general public that is not provided to physically disabled, bedridden individuals, like Ms. Mills. This is because of the requirement that customers attend at retail stores in-person to be visually identified before purchasing the new cellular phone on a postpaid basis--a requirement that disabled individuals like Ms. Mills are unable (rather than being unwilling) to comply with. Accordingly, the service customarily made available by Bell to the general public is not simply the provision of access to its services and products as argued by Bell. Rather, it is same-day activation for the purchase of postpaid new cellular phones, like other Canadians are able to obtain, as they are able to attend in person at a retail store to be visually identified, unlike disabled people like Ms. Mills. Reasonable accommodation for disabled people like Ms. Mills is necessary to eliminate the inequity in providing the service of same-day phone activation. None was provided in this case, in spite of there being no tangible evidence that it would have been impossible for Bell to do so without suffering undue hardship.
[47] Online and over the phone purchase ordering alternatives do not provide Ms. Mills and other disabled Canadians, who cannot leave their homes due to a disability, with the needed same-day activation service of a new postpaid subsidized cellular phone like other Canadians are able to obtain by attending in-person at a retail store. This is because shipping and delivering these orders takes a number of days to occur.
[48] Moreover, prepaying for a new cellular phone in order to obtain same-day service is not substantively equal to the service that most other Canadians enjoy when purchasing a new cellular phone on a postpaid subsidized basis. But for her disabilities preventing her from attending in-person at a store to be visually identified, Ms. Mills could have access to same-day postpaid service like other customers of Bell. It was not her choice or preference to be disabled and unable to access the service by personal attendance at a store on the day she needed the cellular phone. Her ultimate attendance at the store on July 11, 2014, when all other suggestions by her and her son were refused by Bell, was undertaken only at great risk and difficulty to her. This would not be possible for many other disabled persons who do not have a son, friend or family member to help them leave their bed and take them to the store.
[49] Ms. Mills and the Commission further argue that Bell has failed to meet the legal test established in Grismer for a bona fide justification defense, and provided no tangible evidence that accommodating Ms. Mills and other disabled persons like her would be impossible without suffering undue hardship. Moreover, despite the fact that Bell adopted its Retail Activation Standards in good faith to try to abate fraud, it made no attempt to come up with a viable alternative to its rule requiring in-store personal identification to try to accommodate Ms. Mills’ disability when it knew she could not attend at a store. Hence, Bell had no idea whether any accommodation alternative to the rule would cause it undue hardship. In this regard, the Commission points out that Bell admitted that it did not train its employees in human rights to address the needs of the disabled.
[50] Bell failed to consider various alternatives to its Retail Activation Standards that would help disabled people, who are prevented by their disabilities from attending in-person for visual inspections at a store, to purchase a new cellular phone on a postpaid subsidized basis and obtain and activate the phone on the same day. These alternatives may also help to prevent fraud and include various different types of better and faster ID checking and credit checking; technologies such as “Skyping” or “Facetiming” with disabled customers allowing them to be visually inspected; training in store Sales Representatives to be able to take ID from a representative of the disabled, home bound, person as a guarantor or by way of Power of Attorney; and, same-day home courier service for phone and online orders within larger centres, as is currently being worked on by Bell.
[51] Finally, Ms. Mills and the Commission submit that Bell did not provide evidence of a single case of fraud committed by an individual who opened an account on behalf of another customer, despite the evidence establishing that it allows anyone to order and activate a phone on behalf of a customer online or over the phone.
(ii) Bell’s position
[52] According to Bell, the application of the Retail Activation Standards to Ms. Mills had no adverse impact on her. She was able to go to a retail store on July 11, 2014, in-person, and purchase and receive a new activated cellular phone on a postpaid subsidized basis. Furthermore, there were a number of additional op